Monday, July 03, 2006

Todays new word: Curtilage

Josh Claybourn's post today is full of good stuff, including reference to the legal term curtilage and a great riff in the comments thread. ITA is a solid piece of work and I have been reading Josh Claybourn's stuff since before he graduated from law school. Hope he won't mind if I steal the whole post.

Defending yourself and property

Recently Georgia joined Indiana and fifteen other states in enacting a "stand your ground" law which allows citizens to use deadly force in responding to threats in public places, without a duty to first retreat. Similar bills are pending in 16 additional states.

Currently the majority common law view found in a majority of states requires that deadly force only be used when death or serious bodily injury is reasonably likely to occur. With the laws which appear to be gaining ground, deadly force can be used to defend yourself or a third person to prevent the commission of a forcible felony (IC 35-41-3-2).

But these states, and especially Indiana, are also liberalizing the justification of force in defense of property. The common view is that deadly force may never be used merely to defend property. Indeed my bar exam review materials take pains to bold and italicize that statement. Yet in Indiana, and perhaps a growing number of states, a person is in fact justified in using deadly force "to prevent or terminate the other person's unlawful entry of or attack on his dwelling or curtilage."

"Curtilage" is the area immediately surrounding a residence, and the mere throwing of stones at a house could reasonably be considered an "attack on" a curtilage. Like it or not, that's the law in Indiana and what appears to be a growing number of other states.

The real fun is in the comments. Go check them out.

This post interests me on several levels. One reason I grabbed it is because I came across Amy Gahran's blog, The Right Conversation. She's "into" the dynamics of how people interact conversationally, but not just in face to face exchanges. She is looking at the idea of conversation, particularly online exchanges by blog, email, IM and the like. Comment threads are obvious examples and this post's comment thread is one that is both civil and smart. Too bad more blog readers can't follow this example. (My two or three readers are too shy even to comment, but someday I may have enough to leave a thread.)

The content also interests me because it has to do with deadly force and self-defense. I am of mixed opinions about that subject because I do not own or use weapons of any kind. I am not prepared, however, to make my principles normative for everyone else. Besides, the Second Amendment has been interpreted to mean that Americans have the right to own guns, and that right is less subject to government interference than the right to smoke or fish. (I saw a guy buying cigarettes yesterday, clearly an adult, showing identification to buy tobacco...after he had already filled his truck with gas, which did not require any special qualifications.)

This more recent trend away from the common law duty to retreat is bringing us closer to another common law principle known as the castle doctrine. I suppose in an environment where trained warriors are being cycled back into civilian status faster than ever before, more prepared than ever to encounter enemies who appear to be civilians, raising the bar for self-defense is not all that irrational. I have heard arguments that the most fundamental deterrent for any perpetrator of crime involving a human victim, whether the crime be robbery, assault or rape, is the fear that the victim might be armed.

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